12 Jul International Conference Addresses Human Rights of Children Born via Foreign Surrogacy

I had the great honor recently to represent the American Bar Association and its Assisted Reproduction Technology Committee at the first International Surrogacy Conference, hosted last month by Cambridge University’s Selwyn College, the American Bar Association Section of Family Law, and the International Academy of Family Lawyers. The conference brought together academicians, attorneys, judges, regulators and fertility specialists from nations including UK, France, Australia, South Africa, New Zealand, Netherlands, Switzerland and the U.S.

The ABA formed its ART committee in 1987 in an effort to develop best practices and model legislation aimed at protecting children and families impacted by this rapidly and still-evolving area of law. I chaired the committee from 2013 through 2018. Fellow committee chairs Steve Snyder, who served in the role for seven years prior to my term, and Dean Hutchison, who succeeded me, also participated in Cambridge.

The use of surrogacy to create families is here to stay. As technology advances, and as societal acceptance and access to services continue to expand, more and more people have come to view surrogacy as a viable path to parenthood—even those who reside in countries where surrogacy is illegal. Intended parents from countries where surrogacy is banned, including UK, France and Italy, often travel abroad to countries where the process is legal, or where lax regulations have encouraged the growth of surrogacy industries.

Unfortunately, as surrogacy has become more common, unethical practices, exploitation of surrogates and/or intended parents and even trafficking of children also has persisted, partly because of nonexistent or uneven legal regulation. The purpose of the conference, then, was to address the following questions:

How do we, as an international community, help ensure that there are reasonable and thoughtful protections in place for the participants involved in surrogacy while still also addressing the issues of concern on an international level?

How do we do this without creating unreasonable barriers to access to surrogacy for well-intentioned, thoughtful and loving intended parents while also creating a system whereby the parent-child relationship adjudicated by a court can be recognized, honored and protected across borders?

As founder of a law firm focused exclusively on assisted reproductive technology law, I along with the team at International Fertility Law Group have represented thousands of intended parents from all over the world. Part of that experience has been witnessing first-hand the immense stress, expense and emotional turmoil that too often are the cost when intended parents are forced to seek surrogacy abroad.

One of the most compelling presentations at the conference came from Dominique and Sylvie Mennesson, who continue in their battle in to establish parentage and win full citizenship in their native France for their twin daughters born to a surrogate in California in 2000.

We first wrote about this case in 2014, when a ruling by the European Court for Human Rights, required France and the other 46 ECHR member nations to automatically recognize the parental rights of parents who have a genetic connection to their children born through surrogacy abroad, and grant citizenship to the child. That ruling was based on the Mennessons’ case and that of another family that had undergone surrogacy in the U.S. As we wrote then:

The ECHR, which acts under authority of the European Convention on Human Rights enacted by the Council of Europe in 1950, ruled that while France has the right to ban surrogate parenthood within its boundaries, it does not have the right to deny legal status to the parent-child relationships of children and their parents just because a surrogate carried and delivered the children.

The 2014 ruling mandated that France must recognize the parental relationship of parents who have genetically related children via surrogacy in other countries. French children born abroad via surrogacy would receive passports and French identity cards and would be able to request certificates of French nationality.

But the 2014 ECHR ruling left it to the discretion of individual countries to determine how to establish parental rights of a non-genetic intended parent of a child born via foreign surrogacy.

In France, at least, the ECHR ruling led to a July 2017 ruling by the Cour de cassation, or the French supreme court, establishing a three-part process that non-biological intended parents must follow to establish parental authority. As we reported at the time:

The convoluted process the French court ruling has imposed upon intended parents, although it clarifies French parentage law, is a setback in the wake of several European Court of Human Rights rulings that have tended to treat recognition of parental authority and citizenship for children born abroad via surrogacy as basic human rights….

So what happened? The French court took the position that, while it agrees with the ECHR’s directive to recognize the nationality of the child, refusing to transcribe the intended mother as parent is not a violation of human rights. French law defines “mother” as the person who gives birth to the child; the intended mother who has a child via surrogacy does not fit that definition. The court further ruled that refusal to inscribe the intended mother does not have an excessive impact on the child’s right to privacy and family life, because the intended mother can adopt the child, a recognized procedure to establish parental rights in France. The cumbersome process and added expenses to intended parents is consistent with France’s policy of discouraging surrogacy.

Nearly two decades after it began, the Mennesson’s battle to obtain full legal recognition for their family in France continues to this day. In 2006, the family established Association Clara, which now has over 2000 members, to defend all children born through surrogacy and promote legalization of surrogacy in France. Most recently, the family has been fighting to have a 2011 decision denying Sylvia’s parentage re-examined in view of recent changes in French law. In 2017, after the children had been living in France for 16 years, they were finally granted French citizenship. Still, however, France continues to deny them legal recognition of their parent-child relationship, which most certainly is not in the best interest of these children (now 18 years old).

The significance of the high-profile Mennesson case is the light it sheds on countless, nameless families all over the world for whom the miracle of parenthood by surrogacy is marred when their precious offspring are rendered stateless or parentless as a result of arcane or invasive laws—a story destined to be repeated again and again, all over the world, until humane and consistent laws are put in place. Even in our age of technological miracles, we must still grapple with the most basic questions of what constitutes a parent, what constitutes a family, and how citizenship is determined. While the participants of the first International Surrogacy Conference were not able to resolve all those questions in June 2019, we did begin the essential global conversation that will ultimately lead to expanded opportunities and equal protections for all families.

For more photos from the first International Surrogacy Conference at Cambridge, visit the IFLG Facebook album here!

Richard Vaughn

rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

ABOUT IFLG

As a law firm practicing exclusively in fertility law, we are committed to providing you and your family with the highest caliber legal support in all aspects of assisted reproductive technology law, including surrogacy, egg donation, embryo donation, sperm donation, parental rights, non-traditional family formation and second-parent adoption.

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.